ODOM & KAPLAN (No.2)

[2020] FCCA 3205

FEDERAL CIRCUIT COURT OF AUSTRALIA

ODOM & KAPLAN (No.2) [2020] FCCA 3205

Catchwords:
FAMILY LAW – Parenting – interim applications – best interests of child – Orders made.

Legislation:

Family Law Act1975 (Cth), ss 69ZL, 102NA

Cases cited:

Rice & Asplund (1979) FLC 90 – 725

Applicant: MR ODOM

Respondent: MS KAPLAN

File Number: PAC 4810 of 2018

Judgment of: Judge Newbrun

Hearing date: 22 July 2020, 21 August 2020

Date of Last Submission: 21 August 2020

Delivered at: Parramatta

Delivered on: 24 November 2020

REPRESENTATION

The Applicant appeared in person

The Respondent appeared in person

ORDERS PENDING FURTHER ORDER

1. The Court varies Order 4(c) in Exhibit ‘A’ of the Court’s Orders of 14 November 2018 so that it reads: ‘For Terms 1, 2 and 3 of the NSW gazetted school holidays, the Father shall spend time with the children commencing at 7:15pm on the first Friday of the holidays until 7:15pm on the following Friday.

2. The Court varies Order 4(d) in Exhibit ‘A’ of the Court’s Orders of 14 November 2018 so that it reads: ‘For term 4 of the NSW gazetted school holidays, as agreed. Failing such agreement the Father is to spend time with the children each alternate week commencing at 7:15pm on the first Friday of school holidays until 7:15pm on the following Friday’.

3. The Court varies Order 5 of the Court’s Orders of 16 October 2019 so that it reads: “During the NSW school terms, the fortnightly changeover is to occur at 7:15pm Friday within the external foyer of the Suburb D Police Station. The Father shall return the children to the mother on the immediately following Sunday evening at 6:45pm, with such changeover to occur within the internal foyer of the Suburb D Police Station.”

4. Apart from the above variations to the Court’s previous interim Orders, the Mother’s proposed Orders 1-5 in her Application in a Case filed 28 April 2020 are dismissed.

5. The proceedings are listed on 1 March 2021 at 10am for Final Hearing in relation to parenting, estimate 3 days.

6. The parties shall file and serve any Amended Application or Response upon which they intend to rely by no less than 21 days before the Final Hearing.

7. Each party shall file and serve one consolidated Affidavit of their evidence in chief and one Affidavit from each witness upon which they rely in support of the orders sought by them, not less than 21 days before the Final Hearing.

8. Neither party may rely on any document filed other than in compliance with these orders without leave of the Court.

9. Each party shall file and serve a Case Outline not less than 14 days before the Final Hearing, setting out:

   (a)a chronology,

   (b)a precise Minute of Orders sought;

   (c)a list of documents to be relied upon;

   (d)a brief summary of argument touching upon the matters set out in sections 60CC(2), (2A) & (3) with reference to the relevant evidence relied upon.

   (e)A list of authorities to be relied upon.

10. Where a party wishes to cross examine the Family Report writer at the Final Hearing, that party shall provide written confirmation to the Family Report writer within 14 days from the date of allocation of Final Hearing dates and in the event that no notice is given to the Family Report writer and the Family Report writer is unavailable, the Family Report will be admitted into evidence without cross examination subject only to evidentiary objection.

11. The party responsible for the payment of any fee including a setting down or hearing fee, do pay or cause to be paid such fees as shall be payable by that party in accordance with and within the time specified in, the Family law (Fees) Regulation 2012.

12. Pursuant to s 102NA(1)(c)(iv) Family Law Act 1975, the requirements of s 120NA(2) are to apply to the cross-examination by the Mother of the Father.

13. Pursuant to s 102NA(1)(c)(iv) Family Law Act 1975, the requirements of s 120NA(2) are to apply to the cross-examination by the Father of the Mother.

14. The parties are directed to forthwith make all necessary applications to the Commonwealth Family Violence and Cross-Examination of Parties scheme so as to obtain legal representation for the Final Hearing.

NOTATION:

1. The Court notes that Ms Glennis Court is the recently appointed Independent Children’s Lawyer representing the children in these proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Odom & Kaplan (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 4810 of 2018

MR ODOM

Applicant

And

MS KAPLAN

Respondent

REASONS FOR JUDGMENT

1. The children the subject of these further interim parenting proceedings are X aged 10 years, and Y aged almost 9 years. These children live in the Mother’s primary care, and spend, inter alia, fortnightly weekend time with the Father (see below as to the precise times).

2. These are short form reasons under section 69ZL of the Family Law Act1975 in relation to the determination of the Mother’s proposal (opposed by the Father) to vary previous interim parenting Orders made by the Court on 16 October 2019 relating to, inter alia:

   a)the time and place of the pickup location for the commencement of the Father’s time with the children on fortnightly Friday evenings;

   b)the time and place of the drop-off location for the conclusion of the Father’s time with the children on fortnightly weekends.

3. Under the above orders made on 16 October 2019, as varied by consent by the Orders of 22 July 2020, the children are to spend time with the Father as agreed, or failing agreement as follows:

   a)each alternate weekend from 7.15 PM Friday until the immediately following Sunday at 6.45 PM.

4. The above orders of 16 October 2019 also provided that the fortnightly changeover was to occur in the internal foyer of the Suburb D Police Station.

5. The Mother at this interim hearing sought to vary the above Orders of 16 October 2019 such that, during school term times:

   a)on the fortnightly Friday evening, the Father would pick up the children from the children’s before and after-school care premises at Suburb A by 6 PM (or at the latest 6:30 PM);

   b)the Father would return the children on the following Monday morning by 8:30 AM to the children’s before and after school care premises at Suburb A.

6. The Mother sought to vary the above Orders of 16 October 2019 such that, during school holidays for Terms 1, 2 and 3:

   a)the Father pick up the children from Suburb B Sports Club at H Street, Suburb B (vacation care) after school care by 6 PM on the first Friday of the holidays, and drop the children off on the second Monday (of week 2) of the school holidays by 8:30 AM.

7. The Mother sought to vary the above Orders of 16 October 2019 such that, during school holidays for Term 4:

   a)the Father shall pick the children up on the first Friday of the term 4 school holidays from Preschool I at Suburb A;

   b)the Father return the children to the Mother at Suburb D Police Station on Friday, week 2 of the Term 4 school holidays;

   c)for the remainder of the Term 4 school holidays, the Father shall pick up and drop off the children from Suburb B Sports Club at Suburb B.

8. The Court observes that pursuant to Order 3 of the Court’s Orders of 16 October 2019, for the shorter school holidays, the Father shall spend time with the children commencing at 6:30 PM on the first Friday of the holidays until 6:30 PM on the following Friday.

9. The Court observes that under Order 4 of the Court’s Orders of 16 October 2019, the Father is to spend time, in the absence of agreement, with the children each alternate week commencing at 6:30 PM on the first Friday of school holidays until 6:30 PM on the following Friday.

10. The Mother’s material relied upon was as follows:

    a)Her Response to an Application a Case filed 28 April 2020;

    b)Her Affidavits filed 28 April 2020, 30 June 2020, 6 August 2020, 11 August 2020.

11. The Father’s material relied upon was as follows:

    a)His Amended Application in a Case filed 5 June 2020;

    b)His Affidavits filed 4 June 2020, 2 July 2020, 28 July 2020, 7 August 2020.

12. The Court has considered the Family Report dated 14 May 2020.

13. The Court, on 22 July 2020, commenced to hear the parties’ competing submissions in relation to the Mother’s above proposed variation to the Court’s interim parenting Orders of 16 October 2019. It became apparent at that time that the Father had not had an opportunity to respond to the Mother’s Affidavit filed 30 June 2020 (in particular paragraphs 37 to 41 inclusive of that Affidavit, including Annexures J and K), and accordingly, the Court gave the Father a short 7 day opportunity to respond to that Affidavit of the Mother. The Father took up that opportunity and filed further Affidavits of himself.

14. Importantly, for the purposes of this interim hearing, on 22 July 2020 the Court made interim Orders by consent varying its previous Orders of 16 October 2019 and made various restraining Orders (see below), in view of:

    a)the Mother’s allegations, inter alia, that she was being harassed and intimidated by the Father at changeovers at the Suburb D Police Station (see, in particular, paragraphs 51-55 of the Mother’s Affidavit filed 28 April 2020), and

    b)the parties’ contended practical difficulties in punctually attending pick up and drop off times on the fortnightly Friday evenings and Sunday afternoons at the Suburb D Police Station.

15. Accordingly the Court, by consent, made the following further interim parenting Orders:

    2. That Order 2 of the Court’s interim orders dated 16 October 2019 is varied so that it reads as follows: “That the Children are to spend time with the Father as agreed, or failing agreement as follows:

    a. Each alternate Weekend from 7:15pm Friday until the immediately following Sunday at 6:45pm;

    b. Such time as outlined in the above order shall be suspended during school holidays and shall recommence on the first weekend after each school holidays.

    3. Pending further order, the Father shall be restrained from using any device to video and/or make any audio recording of the Mother and/or any of the children at changeovers.

    4. Pending further order, the parties shall be restrained from verbally abusing, denigrating, arguing, or intimidating the other parent, whether in the presence of either of the children or otherwise, at changeovers.

    5. Pending further order, the parties shall be restrained from discussing any of the content of these proceedings with either of the children, including discussing the content of any application or any Affidavit or the contents of the family report.

    6. Pending further order, each party shall be civil and courteous with the other party at changeovers, whether in the presence of either of the children or otherwise.

16. The Court refers to its interim parenting judgment of 16 October 2019.

17. In view of the Mother’s proposed variations to the Court’s interim Orders of 16 October 2019, the threshold question to be posed by the Court is: has there been a significant change in circumstances, as discussed in the decision of Rice & Asplund (1979) FLC 90 – 725, since the Court’s Orders of 16 October 2019, such that the Court, acting in the best interests of the children, should permit the Mother to seek a variation of the Court’s Orders of 16 October 2019 that she seeks.

18. In Rice & Asplund (1979) FLC 90 – 725, Evatt CJ stated, at paragraph 7-8:

    The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J., there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material (passage quoted in Hayman and Hayman (supra), at p. 75,680). These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.

    Once the court is satisfied that there is a new factor or a change in circumstances, then the issue of custody is to be determined in the ordinary way. The court must apply the principles of sec. 64 and weigh up the factors for and against the proposals of each party, having regard to the welfare of the child as the paramount consideration. One of these factors is the length of time the child has been in a particular situation. Another is any earlier decision of the court, and the reasons for that decision. The possible advantages or disadvantages of a change in custody need consideration along with all the other usual factors. While the court should give weight to any earlier decision and, in particular, to any findings of fact, the judge is not bound by the earlier court's assessment of the parties or views as to the best interests of the child. These are matters which cannot be determined by any fixed or absolute standard.

19. The Court is of the view that there probably has been a significant change in circumstances since the Court’s Orders of 16 October 2019 in that the Mother has made allegations of significant conflict between the parties at changeovers at or near Suburb D Police Station (at least post 16 October 2019 and up to at least 22 July 2020), and further, the Mother’s employment position changed post 16 October 2019. Accordingly, the Mother should be permitted to seek a variation of the Court’s Orders of 16 October 2019.

20. The Mother relies upon, in particular, the following further material in support of her contention that fortnightly changeovers (pickups of the children by the Father) on the Friday evening should take place at Suburb B, and that fortnightly changeovers (drop-offs of the children by the Father) should occur on Monday mornings before school. The Court , for ease of reference, will correspondingly set out, inter alia, the Father’s responses to such further material from the Mother:

    a)the Mother alleges that prior to her commencing proceedings in November 2018, when the children attended Suburb G Public School, the Father allegedly had the flexibility to leave work early if you work through lunch or started early;

    b)the Mother alleges that arrangements under Court Orders by consent of 14 November 2018 required the Father to be responsible for the children from 3 PM every alternative Friday until 8:50 AM the following Monday. She alleges that this was in line with Suburb G Public School hours from 8: 50 a.m. to 3 PM. She alleges in this context that from 14 November to 19 December 2018 when term 4 finished, the Father was picking up the children at 3 PM and dropping them to school at 8:50 AM.

    c)the Mother alleges that on three occasions in February and March 2019 the Father signed the children out from after school care at 4:34 PM and 4:31 PM. The Mother alleged that this confirmed that the Father does not finish work at 5 PM but before 4:30 PM, allowing him ample time to pick the children up from Suburb B at 6 PM. In this context the Mother annexes to her Affidavit filed 30 June 2020 sign out sheets from the after-school care facility.

21. The Father’s responses to the above material, inter alia, is as follows:

    a)He alleges that on about 19 February 2019 his contract of employment with J Organisation of Suburb E was varied; he alleges his position was changed to manager. He alleges that his new work “location”, was changed from Suburb E to North Suburb E. He alleges his remuneration was increased.

    b)The Father alleges that his work duties include morning weekday meetings commencing as early as 8:30 AM, and that he is required to arrive at the scheduled interviews 30 minutes prior. He annexes to his Affidavit filed 28 July 2020 alleged work records indicating meetings starting at 8:30 AM; for example one meeting starting at Suburb K at 8:30 AM.

    c)The Father alleges that he finishes work at 5 PM at Suburb E and walks about 10 minutes to a car park at Suburb E. He alleges that as a family support officer he is lucky to leave right at 5 PM from work. He alleges that to finish work at 5 PM sharp, go to the staff car park, navigate M Road, L Road, N Road and O Highway in Suburb B by 7 PM is simply impossible.

22. The Father’s above responses led to the Mother filing a further Affidavit on 6 August 2020 in which she alleges:

    a)the Father’s above alleged variation of contract of employment confirms that his contract is under the Enterprise Agreement. The Mother then alleges that such enterprise agreement entitles the Father to seek flexible working arrangements where he is the parent of a child.

23. The Father responded to the above allegations of the Mother by alleging, in his Affidavit filed 7 August 2020:

    a)The Mother’s contention that his employment contract was under the enterprise agreement was incorrect. He contended that the reference to “Enterprise” (appearing next to the word “Directorate”) in his variation of contract refers to the reporting structure of his employer organisation. He alleged that he is part of unit P, and that he is part of the Enterprise Directorate. He alleges that there was no mention of “enterprise agreement” in his employment contract because he is not a staff member registered at J Organisation.

24. The Mother then filed a further Affidavit on 11 August 2020 referring to Fair Work NSW Legislation being allegedly referable to all awards, enterprise agreements and other registered agreements. Again, by reference to the Father’s Affidavit filed 28 July 2020 and 7 August 2020, there is a significant suggestion that the Father is not subject to an award, enterprise agreement or other registered agreement. There is a significant suggestion that the Father is governed by a personal contract of employment dated 11 April 2017, as varied by variation to this contract of employment dated 19 February 2019.

25. In the Mother’s Affidavit filed 11 August 2020, she asserts that based on the Australian Government legislative and regulatory requirements applicable to all employers and employers (irrespective of whether they are part of an Enterprise Agreement), the father has the ability to request flexible working arrangements of his working hours for 4 days out of the 20 day working month to allow him to pick up the children and drop them off to school. The Mother does not refer to or specify what is the relevant Australian Government legislation or regulation that she contends is applicable to the father. In any event, the Father, in his Affidavit evidence at this interim hearing, has alleged, giving some particularisation, that he has certain employment obligations in terms of his usual work hours, and which the court has taken into account in reaching its determination.

26. In light of the above discussed matters, including the Father’s above responses to the Mother’s fresh contentions, the Court remains of the view, as indicated in its Reasons for Judgment of 16 October 2019, that there is a significant suggestion (without proceeding to make any finding of fact, this being a further interim hearing) that the Father may well have practical difficulties in reliably being able to:

    a)pick up the children from after school care at Suburb B on the fortnightly Friday evening by 6 PM, if not 6:30 PM.

    b)drop off the children to before-school care on the fortnightly Monday morning and be able to commence his work commitments, as early as 8 AM/8:30 AM, as alleged by him and referred to above.

1. The above referred to asserted practical difficulties of the father would also appear to be applicable to pick up and drop off times in the school holidays.

2. The Court refers to its protective orders made on 22 July 2020 in relation to the parties’ changeover at the Suburb D Police Station. At this interim stage, the Court remains of the view that the above Orders can minimise and address the Mother’s above alleged concerns relating to the Father’s alleged behaviour at changeover at or near the Suburb D police station. The Court observes that the Mother adduced no further significant health professional evidence relating to her alleged stress and anxiety relating to changeovers beyond what she had adduced at the earlier interim hearing the subject of the Court’s Orders of 16 October 2019.

3. The Court should further state that the Mother also alleged and contended (see her sister’s email letter to the Father dated 17 November 2019 being Annexure G to the Mother’s Affidavit filed 28 July 2020, and the Mother’s email to the Father dated 26 November 2019 forming part of Annexure C to the Mother’s Affidavit filed 28 April 2020) that she had started with a new employer at the end of October 2019 and that:

   My current work arrangements require me to travel to and from home an hour each way during the week and the weekends. I then have to pick the kids up by 6 PM and drive home to have them change out of their school uniform then drive 20 minutes to Suburb D police station. As mentioned previously it has made it difficult to make drop off at 6:30 PM and pick up at 6 PM.

   I propose the following options to allow a continued relationship with your children and no lost time which we can enter via a parenting plan:

   Option 1:

   Pickup at 7 PM on the Friday during school term and school holidays.

   Drop off at 6:30 PM on Sunday during school term and 7 PM drop-off during school holidays.

   This option means there will be no lost time with the kids.

4. The above new alleged work arrangements of the Mother were the subject of submissions by the parties to the Court on 22 July 2020 and which resulted in the Court making the following variations to Order 2 of the Court’s interim Orders dated 16 October 2019:

   That Order 2 of the Court’s interim Orders dated 16 October 2019 is varied so that it reads as follows:

   That the children are to spend time with the Father as agreed, or failing agreement as follows:

   a) Each alternate weekend from 7:15 PM Friday until the immediately following Sunday at 6:45 PM;

   b) Such time as outlined in the above order shall be suspended during school holidays and shall recommence on the first weekend after each school holidays.

5. The Court, again, has taken into account the further material adduced by the Mother at this interim hearing by comparison to the material adduced before the Court in its earlier interim hearing which was the subject of the Court’s Orders of 16 October 2019. Again, the Court has discussed, above, the Father’s relevant alleged material in answer to the Mother’s further material. The Court, in light of the above discussions, is not persuaded that it will be in the best interests of the children to vary the Court’s Orders of 16 October 2019, as sought by the Mother.

6. However, in light of the Court’s Orders by consent of 22 July 2020, varying Order 2 of the Court’s interim orders dated 16 October 2019, referred to above, varying the pick-up time to 7:15 PM Friday and drop off time to Sunday at 6:45 PM, it will be, for practicality purposes, in the best interests of the children to vary the Court’s Orders of 16 October 2019, in particular Orders 3, 4, and 5, so as to make applicable to those particular Orders the (varied) pickup times of 7:15 PM Friday and drop off times on the Sunday at 6:45 PM.

7. The Court now proposes to make trial directions for a Final Hearing of the parties’ outstanding parenting disputes to be held on 1 March 2021. The Family Report dated 14 May 2020 is in existence. The Court will need to make orders pursuant to section 102NA to permit the parties to now make relevant applications to the Commonwealth Family Violence and Cross examination of Parties scheme with a view to them obtaining legal representation for such Final Hearing.

8. The parties made no submissions at this interim hearing relating to the Mother’s proposed Orders 6-8 set out in her Application in a Case filed 28 April 2020 (relating to a proposed discharge of certain Orders of 14 November 2018). These proposed Orders can be dealt with at the final hearing.

I certify that the preceding thirty four (34) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Associate: 

Date: 24 November 2020